ADVERTISING AGENCY AGREEMENT
– this agreement applies to all clients who engage us either ad-hoc or on contract or retainer to perform any of our services.
Agency is in the business of providing advertising agency services for a fee.
Advertiser desires to engage Agency to render, and Agency desires to render to Advertiser, certain advertising agency services, all as set forth.
NOW, THEREFORE, in consideration of the mutual agreements and covenants herein contained the parties hereto agree as follows:
Advertiser engages Agency to render, and Agency agrees to render to Advertiser, certain services in connection with Advertiser’s planning, preparing and placing of advertising for certain of Advertiser’s products as follows:
A. Analyze Advertiser’s current and proposed products and services and present and potential markets.
B. Create, prepare and submit to Advertiser for its prior approval advertising ideas and programs.
C. Prepare and submit to Advertiser for its prior approval estimates of costs and expenses associated with proposed advertising ideas and programs.
D. Design and prepare, or arrange for the design and preparation of, advertisements.
E. Perform such other services as Advertiser may request from time to time such as, but not limited to, direct mail advertising preparation, speech writing, publicity and public relations work, market research and analysis.
F. Order advertising space, time or other means to be used for publication of Advertiser’s advertisements, at all times endeavoring to secure the most efficient and advantageous rates available.
G. Proof for accuracy and completeness of insertions, displays, broadcasts, or other forms of advertisements.
H. Audit invoices for space, time, material preparation and charges.
Agency’s engagement shall relate to the following products and services of Advertiser: Digital Management, PPC, SEO, Amazon Management, General Consulting
Agency shall be the Exclusive or Non-Exclusive advertising agency in the New Zealand for Advertiser with respect to the products described in Section 2 above.
A. Agency shall receive an amount equal to 12% of the gross charges levied by media for advertising placed therewith by Agency pursuant to this Agreement; and 10% after volume discount, of the charges of suppliers of services or properties, such as finished art, comprehensive layouts, type composition, photostats, engravings, printing, radio and television programs, talent, literary, dramatic and musical works, records and exhibits, purchased by Agency on Advertiser’s authorization during the term of this Agreement; provided that:
(i) No percentage will be added to Agency charges for packing, shipping, express, postage, telephone, telex, fax, travel expenses and other out of pocket expenses of Agency personnel; and
(ii) Agency’s commission for outdoor advertising will be the standard rate allowed advertising agencies when such rate is less than 5%.
B. For those items where Agency is not compensated on a commission basis, Advertiser shall pay Agency on an hourly basis for services provided hereunder. The rate will be determined by the type of services provided and the person or persons providing such services, but in no event shall the rate exceed $148 per hour. Advertiser may elect in advance to be charged on this hourly rate basis. If Advertiser fails to notify Agency of its choice, it shall be presumed that Advertiser elected to be charged on an hourly rate basis.
C. In the event that Agency undertakes, at Advertiser’s request subject to Advertiser’s prior approval, special projects such as those described in Section 1.F above, Agency shall prepare an estimate of total charges for any such special project, including therein any charges for materials or services purchased from outside sources. In the event that Advertiser elects to proceed with the special project based upon Agency’s estimated cost, Agency shall perform the services with respect to such special project at its estimated cost, subject to modification as mutually agreed by the parties.
D. For any special project or other services provided by Agency pursuant to this Agreement upon which the parties have not agreed as to charges, Advertiser shall pay Agency at its regular hourly rates, not to exceed $149 per hour.
E. Advertiser shall not be obligated to reimburse Agency for any travel or other out-of-pocket expenses incurred in the performance of services pursuant to this Agreement unless expressly agreed by Advertiser in advance.
A. Agency shall invoice Advertiser for all media costs where possible in advance of Agency’s payment date to allow for prepayment by the Advertiser so that Advertiser may receive the benefit of any available prepayment or similar discount. For any media purchase or service for which Agency is not entitled to a commission, Agency shall ensure that the charges to Advertiser are net of all agency commissions and discounts.
B. Charges for production materials and services shall be billed by Agency upon completion of the production job or, if cash discounts are available, upon receipt of the supplier’s invoice.
C. On all outside purchases other than for media, Agency shall attach to the invoice proof of the supplier’s charges.
D. All cash discounts on Agency’s purchases including, but not limited to, media, art, printing and mechanical work, shall be available to Advertiser, provided that Advertiser meets Agency’s requisite billing terms and there is no outstanding indebtedness of Advertiser to Agency at the time of the payment to the supplier.
E. Rate or billing adjustments shall be credited or charged to Advertiser on the next following regular invoice date or as soon as otherwise practical.
F. Invoices shall be submitted in an itemized format and shall be paid by Advertiser within thirty (30) days of the invoice date.
During the term of this Agreement, Agency May Not accept employment from, render services to, represent or otherwise be affiliated with any person, firm, corporation or entity in connection with any product or service directly or indirectly competitive with or similar to any product or service of Advertiser with respect to which the Agency is providing any service pursuant to this Agreement.
7. Cost Estimates.
Agency shall not commence work on any project pursuant to this Agreement without first estimating costs for preparation, including copy, service, layout, art, engraving, typography, processing, paste up and production. After determining the estimated cost, completion of the work shall be subject to Advertiser’s prior approval.
8. Audit Rights.
Agency agrees that following reasonable prior notice any and all contracts, agreements, correspondence, books, accounts and other information relating to Advertiser’s business or this Agreement shall be available for inspection by Advertiser and Advertiser’s outside accountants, at Advertiser’s expense.
9. Ownership and Use.
A. Agency shall insure, to the fullest extent possible under law, that Advertiser shall own any and all right, title and interest in and to, including copyrights, trade secret, patent and other intellectual property rights, with respect to any copy, photograph, advertisement, music, lyrics, or other work or thing created by Agency or at Agency’s direction for Advertiser pursuant to this Agreement and utilized by Advertiser.
B. Upon termination, Advertiser agrees that any advertising, merchandising, package, plan or idea prepared by Agency and submitted to Advertiser (whether submitted separately or in conjunction with or as a part of other material) which Advertiser has elected not to utilize, shall remain the property of Agency, unless Advertiser has paid Agency for its services in preparing such item. Advertiser agrees to return to Agency any copy, artwork, plates or other physical embodiment of such creative work relating to any such idea or plan which may be in Advertiser’s possession at termination or expiration of this Agreement.
C. Materials and advertisements created by Agency pursuant to this Agreement may be used by Advertiser outside the United States without additional compensation, provided that Advertiser shall be responsible for any additional expense associated with such use, such as charges for translation and amounts due talent. Agency’s obligations in Section 10.A. above shall not apply with respect to any such foreign use.
10. Indemnification and Insurance.
B. Advertiser agrees to indemnify and hold Agency harmless with respect to any claims, loss, liability, damage or judgment suffered by Agency, including reasonable attorney’s fees and court costs, which results from the use by Agency of any material or consulting furnished by Advertiser or where material created by Agency or at the direction of Agency subject to the indemnification in subsection A. above is materially changed by Advertiser. Information or data obtained by Agency from Advertiser to substantiate claims made in advertising shall be deemed to be “material furnished by Advertiser to Agency”.
C. In the event of any proceeding, litigation or suit against Advertiser by any regulatory agency or in the event of any court action or other proceeding challenging any advertising prepared by Agency, Agency shall assist in the preparation of the defense of such action or proceeding and cooperate with Advertiser and Advertiser’s attorneys.
D. We shall not be held responsible for any loss of revenue or results a client may experience as a result of engaging us to manage campaigns or consult. It is the client’s responsibility to monitor results and alert us if unsatisfactory results are experience so we can consult on the best way forward.
E. Under no circumstances without our written approval may a client share results experienced while working with us publicly either via email, websites, feedback, or media.
11. Rights Upon Termination.
A. Upon termination of the Agreement, Agency shall transfer, assign and make available to Advertiser all property and materials in Agency’s possession or subject to Agency’s control that are the property of Advertiser, subject to payment in full of amounts due pursuant to this Agreement
B. Upon termination, Agency agrees to provide reasonable cooperation in arranging for the transfer or approval of third party’s interest in all contracts, agreements and other arrangements with advertising media, suppliers, talent and others not then utilized, and all rights and claims thereto and therein, following appropriate release from the obligations therein.
12.1. The following provisions set out the entire financial liability of FiftyOne Digital (including any liability for the acts or omissions of its employees, agents or subcontractors) to the Customer in respect of:
12.1.1. any breach of this Agreement; and
12.1.2. any representation, statement or tortious act or omission including negligence arising under or in connection with the contract.
12.2. Subject as expressly provided in these conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
12.3. Nothing in these conditions excludes or limits the liability of FiftyOne Digital for death or personal injury caused by negligence or for fraudulent misrepresentation.
12.4. Subject to clauses 12.2 and 12.3:
12.4.1. FiftyOne Digital shall not be liable to the Customer for any loss or damage, costs or expenses (whether direct, indirect, incidental or consequential and whether relating to loss of profit, loss of business, business interruption, loss of data, depletion of goodwill or other such losses), suffered by the Customer which arise out of or in connection with the supply of the Service or their use by the Customer.
12.4.2. The Customer assumes all risks as to the suitability, quality, and performance of the Service.
12.4.3. FiftyOne Digital’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise arising in connection with the performance or contemplated performance of this contract shall be limited to, and in no event shall exceed, the amount originally paid to FiftyOne Digital for the Service.
12.4.4. FiftyOne Digital shall not be liable for any loss, damage or delay which arises as a result of the termination of the contract between us, or for our compliance with relevant statutory or regulatory requirements.
12.4.5. It is the responsibility of the Customer to ensure that the deliverables comply with all laws, regulations and codes in all countries where the deliverables are used. The Customer agrees to indemnify FiftyOne Digital against any costs arising from the use or misuse of the deliverables.
12.5. No verbal or written information or advice given by FiftyOne Digital or its dealers, distributors, employees or agents shall in any way extend, modify or add to these conditions.
Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services.